The H-2B visa is for short-term or seasonal workers in non-agricultural positions, such as landscape, cleaning, construction, hotel, and restaurant workers. The H-2B visa permits a stay of up to 10 months for seasonal workers, and longer if the need is a one-time occurrence. You can petition for multiple H-2B workers at one time.
Note that there is a cap of 66,000 H-2B visas per year, with 33,000 allotted based on your start date to each half of the fiscal year (October through March, and April through September). You can check the current H-2B count online. H-2Bs normally run out early for each half, and I recommend starting the process as soon as possible (but no earlier than 120 days before the date of need).
In the past, the cap did not apply to workers H-2B workers changing employers, so even if the cap hit, you may still have been able to find qualified workers. Under the new regulations, it is not clear whether this rule still holds.
H-2B Visa Requirements
- The H-2B job and the employer’s need is one time, seasonal, peak load, or intermittent.
- The H-2B job is for no more than 10 months (if seasonal or peak load).
- There are no qualified and willing US workers available for the job.
- The employer will pay the prevailing wage for the position, which can be found at the Online Wage Library.
H-2B Visa Filing Process
Step 1. The prospective employer conducts a recruitment campaign and files a temporary labor certification application with the US Department of Labor (DOL). The recruitment tests the labor market to see if there are any qualified US workers interested in the position. The recruitment consists of two newspaper ads (one on Sunday) and a job order placed with the state workforce agency. The timing and content of the ads must adhere strictly to DOL regulations.
The employer prepares a recruitment report summarizing the results of the effort. This recruitment report includes names and contact information of any applicants and lawful reasons for not hiring applicants.
The DOL regional certifying officer will grant certification if he finds that qualified persons in the United States are not available for the H-2B position and that the terms of employment will not adversely affect the wages and working conditions of workers in the United States similarly employed.
The recruitment can start no earlier than 120 days before the work start date and takes at least 12-30 days, depending on your state. Once the recruitment is complete, the labor certification is filed and is normally processed in 15-30 days. Thus, you should plan for 1-2 months for this stage.
Step 2.The employer files an I-129 H-2B Petition for a Nonimmigrant Worker with USCIS. The petition includes the labor certification and evidence justifying the temporary need for the worker(s).
The H-2B petition normally takes about two months to be processed. Premium processing is available to guarantee a decision in two weeks (unless there is a request for additional evidence). Premium processing costs $1225. Depending on when you filed and the country from which your workers will come, premium processing may be necessary to get the workers to the United States in a timely fashion.
Any H-2B workers already in the United States in valid nonimmigrant status may be able to change status in the United States through the I-129 H-2B petition. In most cases, these workers will not need to return home for a visa.
Step 3. An H-2B worker outside the United States must apply for a visa at a US Consulate.
In addition to qualifying for the H-2B visa, the Consulate needs to see that each applicant has ties to the country so that he or she will return home after their work period ends. Such ties include family, property, school, or other job ties. The applicant should take birth certificates of children, a marriage certificate, etc. to the interview. Workers who are denied visas may be substituted by other applicants.
Consular processing for the H-2B visa normally takes a few weeks, depending on the schedule of the Consulate.
Upon entry, the H-2B worker will be given a stay that ends when the need for the worker ends, as stated in the nonimmigrant visa petition. The worker may come to the United States 10 days before the authorized work period and stay 10 days later.
Note: If the H-2B worker is terminated early, the employer is liable for paying reasonable transportation costs home. The employer also has an obligation to report any H-2B workers who fail to show for work or are terminated early.